The new rules on business crises: the negotiated settlement of the crisis

It is worth emphasizing this procedure in consideration of the growing number of companies in difficulty, in particular due to the economic crisis suffered by the entire country system in recent years.

The situation to date, in fact, still sees a very limited number of experts, registered at a national level, compared to the expected needs and uses that the tool could have. But despite this, it is important to summarize in extreme detail the salient aspects of this procedure which is activated on the initiative of the entrepreneur and coordinated by the chamber of commerce via a national telematic platform.

Let's see them below.

The CNC starts with the appointment of an independent expert chosen from among the subjects registered in a special list, kept at the Chamber of Commerce, which can be accessed by professionals in possession of certain experience, training and competence requirements. The expert facilitates negotiations between the entrepreneur, the creditors and any other interested parties, in order to identify a solution for overcoming the conditions of equity or economic-financial imbalance which make the crisis or temporary insolvency of the company probable, also through the transfer of the company or branches of it.

Article 1 of the Legislative Decree provides that the commercial and agricultural entrepreneur who finds himself in conditions of patrimonial or economic-financial imbalance which make a crisis or temporary insolvency probable, can ask the general secretary of the chamber of commerce, industry, crafts and agriculture in whose territorial area the company's registered office is located to appoint an independent expert, when it is reasonably achievable to recover the company through the start and completion of negotiations with their creditors. The appointment takes place according to the methods specified in the decree through the direct use of the platform (art. 3) to present the application according to the specifications indicated below in the rule (in art. 5).

Concurrently with the submission of the application, the entrepreneur may request, with an appeal to be presented also to the Court, the confirmation or modification of the protective measures of the company assets or the adoption of the precautionary measures necessary to have time to complete the negotiations with the creditors (articles 6 and 7). The Court issues an order which establishes the duration, not less than thirty and not more than one hundred and twenty days, of the protective measures and, if necessary, of the precautionary measures ordered at the request of the entrepreneur, after consulting the expert. The judge may extend the duration of the measures ordered for the time necessary to ensure the successful outcome of the negotiations.

The entrepreneur can declare that, until the conclusion of the negotiations or the filing of the request for negotiated settlement, articles 2446, second and third paragraphs, 2447, 2482-bis, fourth, fifth and sixth paragraphs, and 2482-ter of the civil code do not apply to him and the cause for dissolution of the company due to reduction or loss of the share capital (art.8) does not arise.

During the negotiations the entrepreneur retains the ordinary and extraordinary management of the company (art.9). The entrepreneur in a state of crisis manages the business in such a way as to avoid prejudice to the economic-financial sustainability of the business. When, during the negotiated settlement, the entrepreneur is insolvent but there are concrete prospects for recovery, he manages the company in the prevailing interest of the creditors. The responsibilities of the entrepreneur remain unchanged, who will have to operate in compliance with the guidelines of the recovery plan that he, assisted by his consultants, has drawn up in support of the CCN application.

At the conclusion of the negotiations (art.11) when a suitable solution for overcoming the crisis situation is identified, the parties may alternatively:

a) conclude a contract, with one or more creditors, which according to the expert's report is suitable to ensure business continuity for a period of not less than two years;

b) conclude a moratorium agreement pursuant to article 182-octies of the Bankruptcy Law (hereinafter, LF);

c) conclude an agreement signed by the entrepreneur, the creditors and the expert which produces the effects referred to in article 67, third paragraph, letter d), of the LF (the so-called certified plan); in this case the certification is not necessary.

d) request the approval of a debt restructuring agreement pursuant to articles 182-bis, 182-septies and 182-novies of the LF;

e) prepare the certified recovery plan referred to in article 67, third paragraph, letter d), LF; 

f) propose the application for a simplified composition with creditors for the liquidation of the assets referred to in article 18 of the same decree;

g) access one of the procedures governed by the LF and the corporate crisis code (CCR).

In the adoption of the CNC procedure, some reward measures are envisaged, (art.14) such as:

• calculation of interest on tax debts at the legal rate;
• minimization of tax penalties in the event of non-payment;
• possibility of obtaining payment of tax debts with an installment plan of up to 72 monthly instalments. In this case, however, it is not possible to experience the so-called "tax transaction" referred to in art. 182 ter LF.